September 17, 2010
IN THE MATTER OF THE CIVIL COMMITMENT OF V.A.M., SVP-201-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-201-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 13, 2010
Before Judges Gilroy and Sapp-Peterson.
V.A.M. is civilly committed to the Special Treatment Unit (STU), which is the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. See N.J.S.A. 30:4-27.34(a). He appeals from an order of November 2, 2009, that continues his commitment after the annual review required by N.J.S.A. 30:4-27.35. We affirm substantially for the reasons stated by Judge Philip M. Freedman in his oral opinion of November 2, 2009.
A person who has committed a sexually violent offense may be confined pursuant to the SVPA only if he or she suffers from an abnormality that causes serious difficulty in controlling sexually violent behavior such that commission of a sexually violent offense is highly likely without confinement "in a secure facility for control, care and treatment." In re Commitment of W.Z., 173 N.J. 109, 120, 132 (2002); N.J.S.A. 30:4-27.26. Annual review hearings to determine whether the person remains in need of commitment despite treatment are required. N.J.S.A. 30:4-27.35; N.J.S.A. 30:4-27.32.*fn1
An order of continued commitment under the SVPA, like an initial order, must be based on "clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend" if not committed to the STU. In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004); see W.Z., supra, 173 N.J. at 131; In re Commitment of J.J.F., 365 N.J. Super. 486, 496-501 (App. Div.), certif. denied, 179 N.J. 373 (2004); In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Commitment of E.D., 353 N.J. Super. 450, 455-56 (App. Div. 2002), certif. denied, 196 N.J. 86 (2008); N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35. "[O]nce the legal standard for commitment no longer exists, the committee is subject to release." E.D., supra, 353 N.J. Super. at 455; see W.Z., supra, 173 N.J. at 133; N.J.S.A. 30:4-27.32; N.J.S.A. 30:4-27.35.
Our review of a commitment pursuant to the SVPA is narrow.
V.A., supra, 357 N.J. Super. at 63. The judge's determination is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion." Ibid. (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001)). The record shows no such abuse with respect to the order under review. This order of continued commitment is adequately supported by the record and consistent with controlling legal principles. R. 2:11-3(e)(1)(A).
The predicate offense for which V.A.M. is currently committed arose from his April 9, 1992 sexual assault of a twelve-year-old girl. V.A.M. pled guilty to one count of second-degree aggravated sexual assault, N.J.S.A. 2C:14-21, for which he received a fifteen-year custodial sentence with a five-year period of parole ineligibility. Prior to sentencing V.A.M. was evaluated at the Adult Diagnostic and Treatment Center (ADTC) and determined to be a repetitive and compulsive sex offender eligible for sentencing to the ADTC; but, in accordance with the plea agreement, V.A.M. was sentenced to the State Prison.
Upon completion of his State Prison sentence, the State moved for his civil commitment pursuant to the SVPA. V.A.M. was temporarily committed on September 18, 2001, and final judgment declaring that he is a sexually violent predator in need of involuntary commitment to a secure facility for control, care and treatment was entered on January 14, 2002. There does not appear to have been an appeal of this order. His commitment has been continued as a result of orders entered following review hearings and orders entered by stipulation.
The hearing that preceded entry of the November 2, 2009 order was held the same day. V.A.M. declined to attend the hearing. The State presented testimony from two witnesses: Dr. Pogos Voskanian, a psychiatrist; and Dr. Jamie Canataro, a psychologist. No witnesses testified on behalf of V.A.M.
The primary basis for Dr. Voskanian's testimony was his own report dated October 13, 2009, which was based upon several sources of information, including treatment records, V.A.M.'s self-reporting, and two prior judgments of convictions. V.A.M. refused to interview with the doctor. He diagnosed V.A.M. as suffering from pedophilia, mood disorder NOS (not otherwise specified), alcohol dependence in a controlled environment, and personality disorder. Dr. Voskanian expressed the opinion that V.A.M. is at high risk to commit further acts of sexual violence in the future if not committed to the STU for control.
Dr. Canataro, who is a member of the Treatment Progress Review Committee (TPRC), testified that V.A.M. remains in Phase II. The doctor acknowledged that the records reflect that V.A.M. had previously participated in treatment modules but did not fully complete them and that although he had previously been in Phase III, his motivation had declined in recent years, he rarely let his guard down and had a fatalistic attitude that he would never be released from the STU. According to Dr. Canataro, V.A.M. expressed the view that he did not believe in treatment and did not "see anything coming from it. No one gets out."
Based upon the evidence presented, which Judge Freedman credited, he found that V.A.M. suffered from several mental abnormalities and a personality disorder, which individually and in combination, predisposed him to engage in acts of sexual violence. In addition, the judge found that the disorders affected V.A.M. cognitively and emotionally to such a degree that if released, "he would have serious difficulty in controlling his sexually violent behavior, and that he would be highly likely to re-offend within the reasonably foreseeable future."
On appeal V.A.M. contends the trial court relied upon flawed evidence and the record shows that over the years, V.A.M. was actively involved in treatment. We disagree that the court relied upon flawed evidence.
The trial court did not discount V.A.M.'s participation in treatment over the years. Indeed, Dr. Canataro's testimony confirmed this fact. However, the record disclosed that V.A.M. had failed to fully complete all of his treatment modules, and the court credited the testimony that V.A.M.'s motivation had declined in recent years, which affected his level of current participation in the treatment programs, resulting in his continued placement in Phase II. We are satisfied the evidence supports the finding that V.A.M. has not made sufficient progress in the STU programs "tailored to address the specific needs of sexually violent predators" to permit a finding that he is no longer in need of commitment under the SVPA. See N.J.S.A. 30:4-27.34(b). The conclusion that he continues to suffer from a mental abnormality or personality disorder that presently causes him serious difficulty in controlling sexually harmful behavior such that he is highly likely to re-offend is supported by clear and convincing evidence. W.Z., supra, 173 N.J. at 131.